Should a Criminal Defendant Testify?

How to Properly Have the Defendant Testify?

Every criminal defendant in the United States has a right not to testify at trial. And when a defendant exercises that right, does not testify at trial, the jury is told not to hold that against them. The jury is told they may not consider that the defendant must be guilty because if he weren’t he would have testified. 

But theory is one thing and practice is another. Scholars have studied this by comparing hundreds of cases, finding cases that are as similar to each other as possible. The conclusion they’ve come to is that there is what they call “the silence penalty”--that defendants who don’t testify are a bit more likely to be found guilty than defendants who do testify in very similar cases. 

But that doesn’t mean every defendant should testify. For some defendants there’s a very good reason not to. It could be something as simple as the defendant’s personality. Maybe the defendant is the sort who will be easily flustered by cross-examination and will look like a liar even when he’s telling the truth. 

We help our clients decide whether to testify. When a defendant decides to testify, then we help them to get ready to testify.

We help them to get ready to do their best as a witness and the main principle that we teach them--this is not going to surprise you-- is to tell the truth.  But maybe it does surprise you that this is the advice given by lawyers who are sophisticated in dealing with criminal trials. Such simple advice, but actually such simple advice is very hard to follow. 

When a person is under attack, the most severe attack they’ve ever been under, in most cases, telling the truth doesn’t come naturally. Being defensive comes naturally. Telling a version of the truth comes naturally, the version that makes them look as good as possible, that puts them in the best light possible. But jurors recognize that spin that a person can put on the truth. We have to guard against that. 

So we help people learn to tell the unvarnished truth. We help our clients learn to believe the truth will set them free.

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